KAROHL, Judge.
Timothy Brown appeals from an order entered on December 15, 1992, which reads:
The Court sustains Petitioner’s Motion to Dismiss Respondent’s Motion to Set Aside Default Judgment and Decree of Dissolution of Marriage.
A default dissolution of marriage was granted on May 1, 1990. Donna Ridgeway has elected not to participate in the appeal.
On October 6,1992, Timothy Brown filed a motion to set aside the default dissolution decree. He alleged, inter alia:
5. Respondent states that the parties have never been married and, specifically, they were not married on November 21, 1987 and no such marriage was registered in the City of St. Louis, Missouri. Therefore, this Petition for Dissolution of Marriage and the Decree of Dissolution attendant thereon were procured and obtained by false, fraudulent and misleading statements by the Petitioner.
Donna Marie Lowe Brown, n/k/a Ridgeway filed a motion to dismiss the motion to set aside alleging:
1. Said Motion is made more than two years after the entry of the Court’s Decree and, therefore, it is not timely.
2. Said Motion cannot be granted in equity because it would involve a rehearing on the merits and, Respondent/Movant has not alleged that he was denied a fair opportunity to appear and defend the original action.
3. Said Motion cannot be granted because the complaining party cannot show an absence of fault, neglect or inattention to the case.
4. More than twenty-eight (28) months has expired since the entry of the Decree of Dissolution herein and, Respondent/Movant is barred from relief he seeks because of laches.
In his memorandum in opposition to the motion, Timothy Brown asserted that the dissolution court never obtained subject matter jurisdiction to dissolve the marriage because the parties were never validly married.
The dissolution court considered the motions and held an evidentiary hearing. Timothy Brown testified and offered documentary evidence. Donna Ridgeway did not appear in person. She was represented by counsel. At the hearing, Timothy Brown testified the parties were never married. The court took judicial notice of the documents authored by the Missouri Bureau of Vital Records and the City of St. Louis which state there is no record of a marriage between Donna Lowe and Timothy Brown, particularly on the date alleged in the petition for dissolution of marriage and at the location in the City of St. Louis. The trial court dismissed Timothy Brown’s motion.
[96]*96As a claim of error, Timothy Brown contends:
II. THE COURT ERRED IN NOT SETTING ASIDE, CANCELING OR VACATING A VOID JUDGMENT OR, IN THE ALTERNATIVE, IN NOT SETTING ASIDE A DEFAULT JUDGMENT, AS IT WAS AN ABUSE OF DISCRETION.
There are two parts to this claim of error. The first expressly contends the dissolution judgment was void and the failure to set aside an error of law. We do not reach the second part which is addressed to an abuse of discretion. The motion to set aside was filed before the judge who entered the dissolution decree. The motion pleads no marriage and the claim of error is that the court had no subject matter jurisdiction to enter the decree of dissolution, accordingly, the judgment was void. The issue is jurisdictional, not merely obtaining a judgment or terms of the judgment by fraudulent acts. We find this motion was sufficient to allege, and the claim of error on appeal is sufficient to preserve, an issue of subject matter jurisdiction. If the parties were never married, it is impossible for a trial court to acquire subject matter jurisdiction to order a dissolution. Fraud is incidental to the determination of jurisdiction, although it may be a matter of dispute. This ease differs from those where the alleged fraud goes only to procedural or substantive disputes where the fact of a marriage is not contested.
The issues are: (1) is the motion to set aside a void judgment authorized; (2) is there any evidence to support the laches defense pleaded in the motion to dismiss; and, (3) must the trial court decide the jurisdictional fact issue consisting of a finding that there was a marriage. We reverse and remand for a decision on the jurisdictional issue.
The motion is authorized by Rule 74.06(b), “on motion and upon terms that are just, the court may relieve a party ... from a judgment [where] (4) the judgment is void.” The motion must be made within a reasonable time. Rule 74.06(c). The “procedure for obtaining any relief from a judgment shall be by motion as prescribed in these Rules or by an independent action.” Rule 74.06(d). Here, we have a motion filed in an equitable dissolution proceeding. It pleads all the elements of a cause of action to set aside a void judgment which could be alleged in an independent action. The Missouri Supreme Court in Sprung v. Negwer Materials, Inc., 727 S.W.2d 883 (Mo. banc 1987) held a motion to set aside a default judgment in a civil damage suit was “sufficient to invoke the equitable powers of the court; ... [and] may be treated as an independent suit in equity.” Id. at 889. Timothy Brown’s motion contests the fundamental requirement of subject matter jurisdiction which implicates the issue of void judgment. It falls within the scope of the rule. Rule 74.06(d).
Timothy Brown notified the circuit clerk on the day he received a copy of the default decree that the parties were never married. He filed his motion to set aside the default judgment twenty-nine months after the decree was entered. Donna Ridgeway’s motion to dismiss alleged the motion to set aside was untimely and was barred by laches. She offered no evidence to support either ground. She did not appear. The allegation as to untimeliness is a conclusion where the real issue is whether the time was unreasonable, Rule 74.06(c), and there was no evidence to support a finding that the delay was unreasonable. The doctrine of laches is an affirmative defense. Rule 55.08. It is a doctrine based upon both unreasonable delay and prejudice to the opposing party. “Mere delay does not of itself constitute laches; the delay involved must work to the disadvantage and prejudice of the [opposing party]. Where no one has been harmed in any legal sense, and the situation has not materially changed, the delay is not fatal.” Hagely v. Board of Ed. of the Webster Groves Schl Dist., 841 S.W.2d 663, 669-70 (Mo. banc 1992). Again, Donna Ridgeway offered no evidence to support a finding of prejudice. In the event the facts accepted by the court prove the parties were never married, particularly not married in St. Louis, Missouri, on November 21,1987, as alleged in the petition for dissolution, then the mere passage of time after the decree and before the motion to set aside could not be prejudicial to the [97]*97civil rights of Donna Ridgeway. If the parties to this litigation were never married, a marriage by Donna subsequent to the “dissolution” could not be prejudicial because she was free to marry as a single person or remarry as a divorcee. Other than her present marriage there is no basis for a finding of prejudice.
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KAROHL, Judge.
Timothy Brown appeals from an order entered on December 15, 1992, which reads:
The Court sustains Petitioner’s Motion to Dismiss Respondent’s Motion to Set Aside Default Judgment and Decree of Dissolution of Marriage.
A default dissolution of marriage was granted on May 1, 1990. Donna Ridgeway has elected not to participate in the appeal.
On October 6,1992, Timothy Brown filed a motion to set aside the default dissolution decree. He alleged, inter alia:
5. Respondent states that the parties have never been married and, specifically, they were not married on November 21, 1987 and no such marriage was registered in the City of St. Louis, Missouri. Therefore, this Petition for Dissolution of Marriage and the Decree of Dissolution attendant thereon were procured and obtained by false, fraudulent and misleading statements by the Petitioner.
Donna Marie Lowe Brown, n/k/a Ridgeway filed a motion to dismiss the motion to set aside alleging:
1. Said Motion is made more than two years after the entry of the Court’s Decree and, therefore, it is not timely.
2. Said Motion cannot be granted in equity because it would involve a rehearing on the merits and, Respondent/Movant has not alleged that he was denied a fair opportunity to appear and defend the original action.
3. Said Motion cannot be granted because the complaining party cannot show an absence of fault, neglect or inattention to the case.
4. More than twenty-eight (28) months has expired since the entry of the Decree of Dissolution herein and, Respondent/Movant is barred from relief he seeks because of laches.
In his memorandum in opposition to the motion, Timothy Brown asserted that the dissolution court never obtained subject matter jurisdiction to dissolve the marriage because the parties were never validly married.
The dissolution court considered the motions and held an evidentiary hearing. Timothy Brown testified and offered documentary evidence. Donna Ridgeway did not appear in person. She was represented by counsel. At the hearing, Timothy Brown testified the parties were never married. The court took judicial notice of the documents authored by the Missouri Bureau of Vital Records and the City of St. Louis which state there is no record of a marriage between Donna Lowe and Timothy Brown, particularly on the date alleged in the petition for dissolution of marriage and at the location in the City of St. Louis. The trial court dismissed Timothy Brown’s motion.
[96]*96As a claim of error, Timothy Brown contends:
II. THE COURT ERRED IN NOT SETTING ASIDE, CANCELING OR VACATING A VOID JUDGMENT OR, IN THE ALTERNATIVE, IN NOT SETTING ASIDE A DEFAULT JUDGMENT, AS IT WAS AN ABUSE OF DISCRETION.
There are two parts to this claim of error. The first expressly contends the dissolution judgment was void and the failure to set aside an error of law. We do not reach the second part which is addressed to an abuse of discretion. The motion to set aside was filed before the judge who entered the dissolution decree. The motion pleads no marriage and the claim of error is that the court had no subject matter jurisdiction to enter the decree of dissolution, accordingly, the judgment was void. The issue is jurisdictional, not merely obtaining a judgment or terms of the judgment by fraudulent acts. We find this motion was sufficient to allege, and the claim of error on appeal is sufficient to preserve, an issue of subject matter jurisdiction. If the parties were never married, it is impossible for a trial court to acquire subject matter jurisdiction to order a dissolution. Fraud is incidental to the determination of jurisdiction, although it may be a matter of dispute. This ease differs from those where the alleged fraud goes only to procedural or substantive disputes where the fact of a marriage is not contested.
The issues are: (1) is the motion to set aside a void judgment authorized; (2) is there any evidence to support the laches defense pleaded in the motion to dismiss; and, (3) must the trial court decide the jurisdictional fact issue consisting of a finding that there was a marriage. We reverse and remand for a decision on the jurisdictional issue.
The motion is authorized by Rule 74.06(b), “on motion and upon terms that are just, the court may relieve a party ... from a judgment [where] (4) the judgment is void.” The motion must be made within a reasonable time. Rule 74.06(c). The “procedure for obtaining any relief from a judgment shall be by motion as prescribed in these Rules or by an independent action.” Rule 74.06(d). Here, we have a motion filed in an equitable dissolution proceeding. It pleads all the elements of a cause of action to set aside a void judgment which could be alleged in an independent action. The Missouri Supreme Court in Sprung v. Negwer Materials, Inc., 727 S.W.2d 883 (Mo. banc 1987) held a motion to set aside a default judgment in a civil damage suit was “sufficient to invoke the equitable powers of the court; ... [and] may be treated as an independent suit in equity.” Id. at 889. Timothy Brown’s motion contests the fundamental requirement of subject matter jurisdiction which implicates the issue of void judgment. It falls within the scope of the rule. Rule 74.06(d).
Timothy Brown notified the circuit clerk on the day he received a copy of the default decree that the parties were never married. He filed his motion to set aside the default judgment twenty-nine months after the decree was entered. Donna Ridgeway’s motion to dismiss alleged the motion to set aside was untimely and was barred by laches. She offered no evidence to support either ground. She did not appear. The allegation as to untimeliness is a conclusion where the real issue is whether the time was unreasonable, Rule 74.06(c), and there was no evidence to support a finding that the delay was unreasonable. The doctrine of laches is an affirmative defense. Rule 55.08. It is a doctrine based upon both unreasonable delay and prejudice to the opposing party. “Mere delay does not of itself constitute laches; the delay involved must work to the disadvantage and prejudice of the [opposing party]. Where no one has been harmed in any legal sense, and the situation has not materially changed, the delay is not fatal.” Hagely v. Board of Ed. of the Webster Groves Schl Dist., 841 S.W.2d 663, 669-70 (Mo. banc 1992). Again, Donna Ridgeway offered no evidence to support a finding of prejudice. In the event the facts accepted by the court prove the parties were never married, particularly not married in St. Louis, Missouri, on November 21,1987, as alleged in the petition for dissolution, then the mere passage of time after the decree and before the motion to set aside could not be prejudicial to the [97]*97civil rights of Donna Ridgeway. If the parties to this litigation were never married, a marriage by Donna subsequent to the “dissolution” could not be prejudicial because she was free to marry as a single person or remarry as a divorcee. Other than her present marriage there is no basis for a finding of prejudice.
The fact issue in dispute consists of proof of a marriage license and a solemnized marriage at a particular time and in a known location. That form of marriage should be easily provable. The passage of time will not be a disadvantage to such proof. These facts distinguish this ease from the proof requirements of a common law Kansas marriage considered in Beasley v. Beasley, 553 S.W.2d 541 (Mo.App.1977) where laches was applied to a case where the motion to set aside relied on denial of the existence of a common law marriage. The court found a five-year delay, coupled with a loss of evidence, was a basis for not reaching the merits of the jurisdictional issue because of laches. The court held the equitable defense foreclosed any consideration of the claim of non-marriage solely because the petitioner’s ability to prove the existence of the marriage had been hindered by delay. The Beasley opinion discloses jurisdictional defects. It cites Wenzel v. Wenzel, 283 S.W.2d 882 (Mo.App.1955) but Wenzel is not applicable because the movant in Wenzel filed an answer admitting the marriage. Thus, subject matter jurisdiction was not an issue. The court also cited Orrick v. Orrick, 241 Mo.App. 143, 233 S.W.2d 826, 828 (1950). In Orrick, the trial court dismissed a motion to set aside because the application for publication notice for wife was defective, thus, personal jurisdiction was never obtained. It held the divorce decree was a nullity and quoted from Nave v. Nave, 28 Mo.App. 505, 510 “If the court had no jurisdiction of the cause its decree was a nullity and should be set aside. Neither the lapse of time, nor evil results following, could prevent this.”
Beasley is helpful in the present case only because it recognizes laches may, if supported by proof, justify not considering Timothy Brown’s motion.
In this case, the motion court had no evi-dentiary basis to find prejudice attributable to delay. Further, Timothy Brown testified that he notified the circuit clerk the parties were never married on the day he received a copy of the dissolution decree. It is significant that there is no suggestion, and no evidence to support a finding, that Timothy Brown ever honored or benefited in any way by the decree.
On remand, the trial court must consider and decide the subject matter jurisdictional issue. It has been said, “When the law and common sense take different paths, one should suspect the law has lost its way.” This saying applies to the grant of a dissolution of marriage if no marriage ever existed. The decision involves more than consideration of some form of fraud in the petition; in the default hearing or in the terms of the decree. It requires a determination on whether the judgment was void for lack of subject matter jurisdiction. This decision is more fundamental than a consideration of whether a court, with jurisdiction, should set aside a default judgment because of some form of fraud.
We reject an analysis that contends the motion to set aside is limited to considering if the judgment or its terms are products of fraud. The motion alleged that the judgment is void-because there never was a marriage to dissolve. The fraud analysis is properly applied where there is a pleading agreeing a marriage existed but that the hearing or parts of the judgment are faulty because of some fraudulent act. Wenzel v. Wenzel, 283 S.W.2d 882 (Mo.App.1955) was such a case. There, the respondent spouse filed a pleading admitting the marriage. The decision really involved a motion to set aside a no contest divorce, not a default divorce, and subject matter jurisdiction was not an issue. Where a motion alleges the court never acquired subject matter jurisdiction to enter a judgment, fraud is involved but not the issue.
We read Rule 74.06(b)(4) together with 74.06(d) to permit either motions or independent actions where the issue is a void judgment. We recently defined a void judgment in K & K Investments, Inc. v. McCoy, 875 S.W.2d 593 (Mo.App.E.D.1994) as:
[98]*98One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a “void judgment” if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.
See also, Platt v. Platt, 815 S.W.2d 82, 83 (Mo.App.1991) (quoting from Black’s Law Dictionary 1574 (6th Ed.1990)).
On remand, the trial court should first consider whether the motion to set aside was untimely filed because of the lapse of an unreasonable length of time or whether the doctrine of laches applies because of delay coupled with prejudice by reason of the delay. If the motion was not unreasonably delayed and no prejudice resulted from the delay, the court should determine the issue of subject matter jurisdiction on the basis of whether there was a marriage. That determination would make the appropriate order obvious.
We reverse and remand for further proceedings in accord with this opinion.
CRANE, P.J., concurs.
CRAHAN, J., dissents in separate opinion.